Court of Appeals Affirms: Material Support Statute, Penalizing Humanitarian Aid, Is Unconstitutional

This week, the full Court of Appeals for the Ninth Circuit refused to reconsider the ruling of a three-judge panel which held that key provisions of the federal statute that makes it a crime to provide "material support or resources" to any group on a State Department list of designated "foreign terrorist organizations" were unconstitutional.

The "material support" statute makes it a crime to provide money or goods, "training," "personnel," "expert advice or assistance," and "services" to any organization placed on the list of "foreign terrorist organizations" maintained by the State Department. Convictions can result in maximum sentences ranging from 15 years to life.

The Center for Constitutional Rights (CCR) originally filed the case, Humanitarian Law Project v. Mukasey, on behalf of the Humanitarian Law Project, a human rights organization that seeks to provide nonviolent dispute resolution and human rights advocacy training to the Kurdistan Workers' Party (PKK), the main Kurdish political party in Turkey, and several groups of Tamil-American physicians and other professionals who seek to provide humanitarian relief in war-torn areas of Sri Lanka controlled by the Liberation Tigers of Tamil Eelam (LTTE), especially areas affected by the 2004 tsunami.

The court rejected en banc review of the panel's decision despite the fact that the full Court of Appeals had decided to review the case in a prior round of appeals, which took place in 2003 and 2004. The full court had heard the case in December 2004, but four days later Congress changed the law in the Intelligence Reform Act, in large part in response to this litigation, and the case was sent back to the lower courts to consider the impact of the legislative amendments. Today's decision confirms that that attempted fix, like an earlier set of amendments by Congress in 2001, failed to remedy fundamental flaws in the statute.

"Congress needs to stop trying to fix this fundamentally flawed scheme piecemeal," said Shayana Kadidal, an attorney with the Center for Constitutional Rights. "The new administration should change the law to make clear that only those who intend to further the illegal ends of an organization can be punished. Teaching human rights enforcement or providing humanitarian relief in war torn areas should never be the basis for criminal prosecutions."

CCR also called on Congress to revise the definition of "material support" to exempt medical supplies and services, and provision of basic necessities like food, water and shelter to civilian refugees. (Currently the only exclusions are for medicines and religious materials.)

Lead counsel and CCR Board Member David Cole, said, "Even as amended by Congress, the material support law continues to make it a crime for a human rights group in the United States to provide human rights training, and today the Court confirmed that that means it's unconstitutional. We don't make the country safer by criminalizing those who advocate nonviolent means for resolving disputes."

The plaintiffs in Humanitarian Law Project v. Mukasey are represented by David Cole and Shayana Kadidal of the Center for Constitutional Rights, and by cooperating attorneys Carol Sobel, Paul Hoffman, and Visuvanathan Rudrakumaran.